Attorney General Eric Holder's decision to bring confessed 9/11 ringleader Khalid Sheikh Mohammed, or KSM, to trial in a lower-Manhattan federal court has turned into a political nightmare for the Obama Administration. Republicans are capitalizing on broad popular opposition to allowing terrorist suspects held at Guantánamo to have their day in civilian courts, painting Democrats as soft on al-Qaeda. Democratic lawmakers are scrambling to distance themselves from the issue, and the Administration has been forced to change its plans.
The White House has decided to move the trial out of Manhattan, and Administration officials speaking on condition of anonymity tell TIME that alternative options are being considered, including other locations in the Southern District of New York, the Eastern District of Virginia, the Middle District of Pennsylvania and a variety of military bases around the country. Officials tell TIME that the Administration is also considering making a 180-degree turn by trying KSM in a military tribunal.
The collapse of Holder's plan to try the case in Manhattan, and bipartisan congressional opposition to a civilian trial for KSM anywhere else, has Democrats inside and outside the Administration wondering about the Attorney General's standing in the White House. Justice officials insist that Holder is working closely with the White House to fix the KSM mess. But other officials see parallels between Holder's predicament and that of Obama's former top White House lawyer, Greg Craig, who fought to implement Obama's campaign-trail positions on counterterrorism but fell out of favor when they became politically unpopular after Obama took office. Holder "is getting the Greg Craig treatment," says an Administration official who is familiar with the White House deliberations.
Craig was eventually forced out of his job as White House counsel because of fights over policy, and no one is suggesting that Holder faces that kind of pressure. But the ugliness of Craig's departure has officials watching how the debate over KSM's trial venue plays out. Obama backed Holder's decision to hold the KSM trial in a civilian court in Manhattan when it was announced last November, saying, "I am absolutely convinced that Khalid Sheikh Mohammed will be subject to the most exacting demands of justice." Obama has made no statement in support of Holder since word leaked last week that the KSM trial would not be held in Manhattan, and White House officials have since defended civilian trials, but not Holder himself. Says a senior Administration official: "We're all trying figure out what the correct option is, and then we'll all go out together."
Republicans spotted the civilian-trials issue as a winner almost from the start of the Obama Administration, and it began generating heat following Holder's announcement of the KSM trial last fall and the failed Christmas Day attack on a U.S. airliner. Senators on Tuesday grilled Obama's top intelligence officials on both issues at a hearing of the Senate Select Committee on Intelligence. "This is going to be an area of focus for us for the foreseeable future," says a senior GOP Senate aide.
Democrats have become even more uncomfortable following the loss of the party's Senate seat in Massachusetts in January. "People talk about the potency of the health care issue," Eric Fehrnstrom, a senior strategist for victorious underdog Republican Scott Brown, told the National Review on election day, "but from our own internal polling, the more potent issue here in Massachusetts was terrorism and the treatment of enemy combatants."
Public polls confirm that Americans largely oppose Democrats on the issue. A Bloomberg poll in early December found that 21% favored trying Gitmo prisoners in criminal court, while 57% wanted them tried in military tribunals. In a late-November USA Today/Gallup poll, 42% favored holding the KSM trial in New York City, while 51% wanted it held elsewhere.
Democrats in Washington are struggling to find the right way to push back against those numbers. "The Administration needs to get out and make their case on this," says a top Democratic Senate aide. "They don't have a good answer right now. They have to find another venue [for the KSM trial], and until then it's hard to push back." Senate majority leader Harry Reid said on Tuesday that "the Bush Administration prosecuted hundreds of these terrorists [in civilian courts, and] 340 of them are in prison right now." He said the President would have to decide "whether [the KSM trial] can be done safely in other parts of the country." (The primary reason given for moving the trial is the security burden it would present in New York City.)
Republicans are planning to test the Democrats' resolve in various pieces of legislation currently in the works. Republican Senator Lindsey Graham has introduced a bill defunding civilian trials for five 9/11 conspirators now held at Guantánamo Bay. But it is not clear whether there is a vehicle for his bill to reach the floor in the near future, top Senate aides say, so it may languish. A similar Graham bill was voted down by a comfortable margin last fall.
That means the decision on whether to stick with civilian trials may rest with Obama and his political advisers. Holder is determined to try the 9/11 conspirators in criminal courts, which Justice officials say have a proven track record of getting convictions and delivering speedy justice. By contrast, Justice officials say, military tribunals are largely untested, have produced only a handful of convictions and could drag out indefinitely in the face of constitutional challenges.
But White House officials are concerned about the politics. "The White House is acting like [Holder's] great sin was the failure to read the mood of Congress," says the Administration official familiar with the White House deliberations. Justice officials insist that Holder has the President's support. "Definitely the President is with him," says a senior Justice official. "The President sees it exactly as Holder does." Others are not so sure. "You haven't heard anyone leaping forward to say they back the Attorney General right now," the official familiar with Administration deliberations says.
Asked about the view that the White House had failed to vocally defend Holder, an Administration official says, "We've made abundantly clear over the last week that the federal court system has a long and successful history of trying terrorist suspects, and we've been out there forcefully defending it."
With reporting by Sophia Yan / Washington